Citation Nr: 9826607
Decision Date: 09/03/98 Archive Date: 09/14/98
DOCKET NO. 93-09 602 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for osteoarthritis of
the lumbar spine.
2. Entitlement to service connection for degenerative disc
disease of the cervical spine.
3. Entitlement to service connection for hypertension.
4. Entitlement to service connection for polyneuropathy of
the lower extremities.
5. Entitlement to service connection for left vocal cord
paralysis.
6. Entitlement to service connection for a psychiatric
disorder.
7. Entitlement to service connection for residuals of
asbestos exposure, to include a tumor of the left upper lung,
status post subtotal lobectomy.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Raymond F. Ferner, Counsel
INTRODUCTION
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a May 1992 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Waco, Texas, which denied the benefits sought on appeal. The
veteran, who had active service from October 1953 to October
1955, appealed that decision to the BVA, and the case was
referred to the Board for appellate review. A BVA decision
dated in April 1994 remanded this case to the RO for
additional development, and the case was subsequently
returned to the Board for final appellate consideration.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran essentially contends that the RO was incorrect in
not granting the benefits sought on appeal. He maintains, in
substance, that the disorders he is seeking to establish as
service-connected disabilities are related to his period of
military service. In particular, the veteran relates that he
was exposed to asbestos on a regular basis during his naval
service in connection with his duties maintaining and
repairing boilers. Reference is made to the evidence of
record as supporting these contentions. Therefore, a
favorable determination has been requested.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record. Based on its
review of the relevant evidence in this matter, and for the
following reasons and bases, it is the decision of the Board
that the veteran has not met the initial burden of submitting
evidence sufficient to justify a belief by a fair and
impartial individual that his claims for service connection
for osteoarthritis of the lumbar spine, degenerative joint
disease of the cervical spine, hypertension, polyneuropathy
of the lower extremities, left vocal cord paralysis, a
psychiatric disorder and for residuals of asbestos exposure,
to include a tumor of the left upper lung, status post total
lobectomy are well grounded.
FINDINGS OF FACT
1. The RO has attempted to obtain all evidence identified by
the veteran, and all obtainable evidence has been secured by
the RO.
2. There is no competent medical evidence of a nexus or
relationship between any osteoarthritis of the lumbar spine
and the veteran's period of military service.
3. There is no competent medical evidence of a nexus or
relationship between any degenerative disc disease of the
cervical spine and the veteran's period of military service.
4. There is no competent medical evidence of a nexus or
relationship between any hypertension and the veteran's
period of military service.
5. There is no competent medical evidence of a nexus or
relationship between polyneuropathy of the lower extremities
and the veteran's period of military service.
6. There is no competent medical evidence of a nexus or
relationship between any left vocal cord paralysis and the
veteran's period of military service.
7. There is no competent medical evidence of a nexus or
relationship between any psychiatric disorder and the
veteran's period of military service.
8. There is no competent medical evidence that shows that
the veteran currently has residuals of asbestos exposure, to
include a tumor of the left upper lung.
CONCLUSIONS OF LAW
1. The claim for service connection for osteoarthritis of
the lumbar spine is not well grounded. 38 U.S.C.A. § 5107(a)
(West 1991).
2. The claim for service connection for degenerative disc
disease of the cervical spine is not well grounded
38 U.S.C.A. § 5107(a) (West 1991).
3. The claim for service connection for hypertension is not
well grounded. 38 U.S.C.A. § 5107(a) (West 1991).
4. The claim for service connection for polyneuropathy of
the lower extremities is not well grounded. 38 U.S.C.A.
§ 5107(a) (West 1991).
5. The claim for service connection for left vocal cord
paralysis is not well grounded. 38 U.S.C.A. § 5107 (West
1991).
6. The claim for service connection for a psychiatric
disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West
1991).
7. The claim for service connection for residuals of
asbestos exposure, to include a tumor of the left upper lung,
status post subtotal lobectomy, is not well grounded.
38 U.S.C.A. § 5107(a) (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
At the outset, the Board notes that the primary purpose of
the April 1994 remand decision was to obtain additional
medical records. The record reflects that attempts by both
the veteran and the RO have been undertaken to obtain all
relevant medical records, and the Board finds that all
reasonable attempts have been made to obtain all available
pertinent medical records. The record also reflects that the
veteran's representative in a VA Form 646 (Statement of
Accredited Representation in Appealed Case) indicated that
all development requested by the April 1994 remand was
completed.
The Board would also note that in several statements
submitted by the veteran subsequent to the March 1998
supplemental statement of the case he included additional
medical records. However, it appears that all of the medical
records submitted by the veteran with those statements were
duplicates of records previously considered by the RO. As
such, the Board concludes that further development pursuant
to 38 C.F.R. § 20.1304(c) (1997) is not indicated.
A veteran is entitled to service connection for a disability
resulting from disease or injury incurred in or aggravated in
the line of duty while in the active military, naval or air
service. See 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R.
§ 3.303 (1997). Service connection may also be established
if a disorder, such as arthritis, hypertension or an organic
disease of the nervous system, is manifested within one year
of the veteran's separation from service. See 38 U.S.C.A.
§§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Further, if
a condition noted during service is not shown to be chronic,
then continuity of symptomatology after service genuinely is
required for service connection. See 38 C.F.R. § 3.303(b).
The threshold question, however, which must be answered in
this case is whether the veteran has presented well-grounded
claims for service connection. A well-grounded claim is a
plausible claim, one which is meritorious on its own or
capable of substantiation. In this regard, the veteran has
"the burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim is
well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Grivois v.
Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski,
1 Vet. App. 78, 81 (1990). While the claim need not be
conclusive it must be accompanied by supporting evidence.
See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In the
absence of evidence of a well-grounded claim there is no duty
to assist the claimant in developing the facts pertinent to
the claim and the claim must fail. See Epps v. Gober,
126 F. 3d. 1,464, 1,467-68 (1997).
For a claim to be well grounded, there must be: (1) A
medical diagnosis of a current disability; (2) medical, or in
certain circumstances, lay evidence of inservice occurrence
or aggravation of a disease or injury; and (3) medical
evidence of a nexus between an inservice disease or injury
and the current disability. Where the determinative issue
involves medical causation, competent medical evidence to the
effect that the claim is plausible is required. See Epps v.
Gober, 126 F. 3d. 1,464, 1,468 (Fed. Cir. 1997). For
disorders subject to presumptive service connection, such as
arthritis, hypertension or organic disorders of the nervous
system, the nexus requirement may be satisfied by evidence of
manifestations of the disease to the required extent within
the prescribed time period. See Traut v. Brown,
6 Vet. App. 495, 497 (1994); Goodsell v. Brown,
5 Vet. App. 36, 43 (1993).
Alternatively, a veteran may establish a well-grounded claim
for service connection under the chronicity provisions of
38 C.F.R. § 3.303(b), which is applicable where evidence,
regardless of its date, shows that the veteran had a chronic
condition in service or during an applicable presumptive
period and that the same condition currently exists. This
evidence must be medical, unless the condition at issue is of
a type for which case law considers lay observation
sufficient. If the chronicity provision is not applicable,
the claim may still be well grounded pursuant to the same
provision if the evidence shows that the condition was
observed during service or any applicable presumptive period
and continuity of symptomatology was demonstrated thereafter,
and includes competent evidence relating the current
condition to that symptomatology. See Savage v. Gober,
10 Vet. App. 488, 495-98 (1997).
I. Osteoarthritis of the Lumbar Spine
The veteran's service medical records contain no evidence of
complaints, treatment or diagnosis pertaining to the lumbar
spine, and those records do not show that osteoarthritis of
the lumbar spine was present during service. Similarly,
medical records dated following service do not document the
presence of osteoarthritis of the lumbar spine within one
year of the veteran's separation from service.
Other medical evidence of record reflects that the veteran
has osteoarthritis of the lumbar spine, for example, a July
1989 statement from Daniel Polsky, M.D., indicates that the
veteran has osteoarthritis of the lumbar spine, but there is
no medical evidence which offers an opinion or suggests that
arthritis of the lumbar spine is in any way related to the
veteran's period of military service. Although the veteran
may be of the opinion that his lumbar spine osteoarthritis is
related to his military service, he is not competent to offer
an opinion which requires medical expertise, Espiritu v.
Derwinski, 2 Vet. App. 492, 494 (1992), and the veteran does
not contend that he is competent to offer such an opinion.
In the absence of medical evidence that relates the veteran’s
osteoarthritis of the lumbar spine to his period of service
the veteran has not submitted evidence of a plausible or
well-grounded claim, and his claim must be denied.
II. Degenerative Disc Disease of the Cervical Spine
A review of the evidence of record discloses that
degenerative disc disease of the cervical spine was first
diagnosed many years following the veteran's separation from
service. An X-ray taken at the time of the VA examination in
March 1991 confirmed a diagnosis of degenerative disc disease
of the cervical spine.
The veteran has not submitted any medical evidence, however,
relating his currently diagnosed degenerative disc disease of
the cervical spine to service. In the absence of such
evidence the veteran's claim for service connection for this
disorder is not well grounded and is therefore denied.
III. Hypertension
The veteran's service medical records do not show that
hypertension was manifested during service, and medical
records dated following service reflect that the veteran's
hypertension was first diagnosed more than one year following
the veteran's separation from service. Private medical
records of a hospitalization of the veteran in late 1988
reflect a history of hypertension for the previous 20 years,
or approximately 1968, more than a decade following his
separation from service in 1955.
The veteran appears to have testified at his personal hearing
in April 1993 that service physicians had informed him that
his blood pressure was up (transcript at 3), but there is no
competent medical evidence that relates the post service
diagnosis of hypertension to service. Absent such evidence,
the veteran's claim for service connection for hypertension
is not well grounded and must be denied.
IV. Polyneuropathy of the Lower Extremities
The available medical evidence does not show that
polyneuropathy of the lower extremities was manifested during
service or within one year of the veteran's separation from
service. The earliest indication of polyneuropathy appears
to be contained in a February 1989 record from the Kingsboro
Medical Group signed by Dr. J. Schwartz which contains a
diagnosis of polyneuropathy of the lower extremities. A
statement from that same medical group dated in July 1989,
signed by Dr. Polsky, contains a similar diagnosis and refers
to EMG studies of Tatsuji Namba, M.D. Significantly,
following a VA examination performed in March 1991 the
diagnosis was of peripheral neuropathy, by history, probably
secondary to severe degenerative joint disease. No other
medical evidence of record appears to suggest any etiology
for the peripheral neuropathy.
Based on this record, the Board must conclude that the
veteran's claim for service connection for polyneuropathy of
the lower extremities is not well grounded. Simply put,
there is no medical evidence which offers an opinion that
this disorder is in any way related to the veteran's period
of military service. Such evidence is necessary to render
the claim well grounded. Accordingly, service connection for
polyneuropathy of the lower extremities is denied.
V. Left Vocal Cord Paralysis
The veteran does not appear to contend that paralysis of his
left vocal cord was present during service, and the record
reflects that this disorder was first shown in the available
medical evidence many years following the veteran's
separation from service. The earliest reference to vocal
cord paralysis appears in a December 1988 record which showed
an impression of rule out vocal cord paralysis. Subsequent
private medical records contain a diagnosis of vocal cord
paralysis, and following a VA examination in March 1991, the
diagnosis was vocal cord paralysis by history with light
hoarseness of voice.
Significantly, none of the medical records clearly identifies
any etiology for the vocal cord paralysis, and none of the
medical records offers an opinion that the disorder is in any
way related to service. A psychiatric evaluation dated in
August 1989 by Joseph Benezra, M.D., suggests an etiology in
relating that the veteran was assaulted in August 1988 and
suffered multiple injuries in that assault including partial
paralysis of the veteran's vocal cords. As such, with no
medical evidence relating this disorder to the veteran's
period of military service the claim must be denied as not
well grounded.
VI. A Psychiatric Disorder
The record clearly shows that the veteran has been diagnosed
with a psychiatric disorder. Dr. Benezra diagnosed the
veteran as having depression following his August 1989
evaluation and the veteran was diagnosed as having severe
mental depression following the March 1991 VA examination.
The Board would observe, however, that the veteran's service
medical records contain no evidence of any psychiatric
complaints, treatment or diagnosis, and none of the medical
records dated following service relates any currently
diagnosed psychiatric disorder to the veteran's period of
military service. In fact, a September 1989 record from
Dr. Benezra indicates that psychological testing demonstrated
the interaction of his symptomatic depression and physical
complaints. Therefore, in the absence of competent medical
evidence that relates a current psychiatric disorder to the
veteran's period of military service, his claim for service
connection for a psychiatric disorder must be denied as not
well grounded.
VII. Residuals of Asbestos Exposure
The veteran's DD Form 214 shows that his military
occupational specialty was related to a civilian occupation
of a boiler operator helper. The veteran testified at his
personal hearing that he repaired and maintained boilers
during virtually his entire career in the Navy. As such, it
is likely that the veteran was exposed to asbestos during the
period of military service. Indeed, the veteran's exposure
to asbestos may readily be conceded and is not at issue in
this appeal.
The medical evidence reflects that the veteran was
hospitalized in November 1988 for complaints of hemoptysis
and eventually underwent a left upper lobe lobectomy. That
the veteran developed a lung disorder that required surgery
has also not been an issue.
What is at issue, given the veteran's claim, is whether his
lung disorder is the result of any asbestos he was exposed to
during service. In order to resolve this question the
veteran's records were reviewed by a VA physician with over
10 years post-training experience in the practice of
pulmonary medicine and who is the Chief of the Pulmonary
Section at the Dallas VA Medical Center. Following a
complete review of the records in the veteran's claims file,
including those associated with the November 1988 surgery,
that physician concluded in a May 1996 report that:
In summary, it is likely that the veteran
did in fact experience significant
exposure to asbestos during his military
service. The findings provided to me do
not suggest that the veteran has
experienced any medical disorder which is
characteristically associated with
asbestos, particularly with respect to
the lesion resected in 1988. This, of
course, does not preclude the possibility
of his developing characteristic disease
in the future, as the latent period for
many of the asbestos-related diseases can
be quite long.
The veteran has not submitted any medical evidence that
offers an opinion as to the etiology of his lung disorder, or
in any way suggests that any current lung disorder is related
to service or to any asbestos he was exposed to during
service. The Board finds the May 1996 VA opinion to be
probative of the issue of whether the veteran currently has a
disorder which is related to that exposure, and the Board
must conclude in view of that opinion that the veteran does
not currently have a disorder which can be considered a
residual of exposure to asbestos exposure. In the absence of
a present disability, the veteran’s claim must be denied as
not well grounded.
VIII. Conclusion
The Board recognizes that these claims on appeal are being
disposed of in a manner that differs from that used by the
RO. The RO denied the veteran’s claims on the merits, while
the Board has concluded that the claims are not well
grounded. However, the Court has held that “when an RO does
not specifically address the question whether a claim is well
grounded but rather, as here, proceeds to adjudication on the
merits, there is no prejudice to the veteran solely from the
omission of the well-grounded analysis.” Meyer v. Brown, 9
Vet.App. 425, 432 (1996).
ORDER
Evidence of a well-grounded claim not having been submitted,
service connection for osteoarthritis of the lumbar spine is
denied.
Evidence of a well-grounded claim not having been submitted,
service connection for degenerative disc disease of the
cervical spine is denied.
Evidence of a well-grounded claim not having been submitted,
service connection for hypertension is denied.
Evidence of a well-grounded claim not having been submitted,
service connection for polyneuropathy of the lower
extremities is denied.
Evidence of a well-grounded claim not having been submitted,
service connection for left vocal cord paralysis is denied.
Evidence of a well-grounded claim not having been submitted,
service connection for a psychiatric disorder is denied.
Evidence of a well-grounded claim not having been submitted,
service connection for residuals of asbestos exposure, to
include a tumor of the left upper lobe, status post subtotal
lobectomy, is denied.
CHARLES E. HOGEBOOM
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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